Justice Oliver Wendell Holmes is often said to have been the greatest American judge. He was conservative in the older sense of the term, faithful to precedent and history, but he welcomed adaptations of the law to new realities. His thought and character stand as a rebuke to today's activists of the Right. Some reflections on the Constitution, originalism and the Supreme Court.

Wednesday, April 30, 2014

The Supreme Court’s decision the other day in the Michigan
affirmative action case—yes, Schuette v.
BAMN was about affirmative action, hang on—prompted a flood of commentary,
but neither the reporters covering the Court nor her fellow justices seemed to respond to Justice Sotomayor’s plea for frank talk. Respect for
precedent keeps the justices from frankly acknowledging that affirmative action
was at issue in the case. The result is that none of the five opinions clearly
state the essential facts that are in dispute.

In Sotomayor’s dissent, joined only by Justice Ginsburg, she
argues that affirmative action was followed by an increase in the proportion of
students who identify themselves as “black” or “Hispanic” (or both) admitted to
colleges and law schools that used such methods. The representation of racial minotities had been well below their share of the general
population, began to rise after affirmative action was undertaken, and then
declined sharply again when it was eliminated. One might draw the reasonable
conclusion that affirmative action in admissions policy had helped to remedy effects of past and present race discrimination, and when affirmative action policies were suspended the effects of race discrimination reasserted
themselves.

The State of Michigan disputed her facts, and Sotomayor was
unable to make her point clearly, in part because the benign effects of “race
conscious” policies are not accepted as legitimate reasons for their adoption.
For the past twenty years, the Court has been asserting that affirmative action
for blacks injures whites, those whom the first Justice Harlan called the “dominant
race.” (Yes, that Justice Harlan, the one who argued for a “color-blind”
Constitution more than a century ago.)

Sotomayor and the male justices did not so much disagree as
they talked past each other. Justices Kennedy, Breyer and Scalia, and Chief
Justice Roberts, each expressed different reasons for upholding Michigan’s ban
on race-conscious policies, and no opinion secured a majority vote.
(Justice Kagan recused herself.) Each in different ways denied
that the case was about affirmative action, however. Sticking to the doctrines
announced in recent cases, the men insisted that the only question was whether race may be taken into account when a school seeks “diversity”
in its student body. This was a policy matter the voters of Michigan might decide for themselves. Putting the question this way, of course, it answers itself.

Affirmative action, which appears to be needed if racial diversity is the target, was not openly discussed because it is barred
except in extraordinary circumstances. Under recent precedents, laws that apply
to racial groups must treat them equally. As Justices Scalia and Thomas
suggested in their opinion, state policies that discriminate against whites are forbidden, just as policies that discriminate against blacks
are forbidden. Affirmative action in their view discriminates against the "majority." The four concurring opinions for the Court seemed to agree
that race need not be used as a criterion of “diversity”; that affirmative
policies in favor of “minorities” discriminate against whites, and that any
race-conscious policy is counter-productive because it cheapens the
achievements of a favored minority and perpetuates racial stereotypes. These
are conclusions of fact, but none of the four concurring opinions made much
effort to establish their factual basis, relying instead on doctrine-driven precedent. The justices seemed to assert that the majority of Michigan voters vindicated the factual arguments against affirmative action by voting to ban it.

I think Sotomayor complaint is that doctrines have driven
out facts. The national debate over affirmative action is being conducted as a
war of slogans, and the Court has shirked its responsibility to separate fact from assertion, and to decide whether the Michigan ban on affirmative action has a reasonable basis.

Neither side in the debate has done a very good job of
stating a factual basis for their policy conclusions; but more on that another day.

Monday, April 21, 2014

The Supreme Court's decision in the McCutcheon case decided the other day tacitly rejected Justice Holmes's widely celebrated opinion in Abrams v. United States, in which he said that the American constitutional experiment was based on a free exchange of opinion--a "marketplace of ideas"--in which political truths could be tested and proven through peaceful debate. Election campaigns are marketplaces of this kind--not bazaars where goods are offered for sale, but the village commons and city street corners where people may proclaim their views.

Tomorrow the Court will hear arguments in Susan B. Anthony List v. Driehaus, challenging an Ohio law that criminalizes knowingly false campaign statements. This will test the other side of Holmes's doctrine, often reaffirmed by the Court in the past, that false, malicious and harmful statements about public figures can be punished, the First Amendment notwithstanding (New York Times v. Sulivan, 1964). As Holmes once put it, no one is entitled to falsely shout 'fire' in a theater causing a panic (Schenck v. United States, 1919). Precedents notwithstanding, however, prospects for the Ohio law are not good, given the new majority's willingness to strike down any regulations that can be characterized as restraints on speech or the press.

A majority led by Chief Justice Roberts evidently is adopting a broad new doctrine, largely severed from precedent (except their own opinions). We might echo Holmes and question the "inarticulate major premise" on which their doctrine is based. Holmes's memorable phrase appears in his dissent in Lochner v. New York, in which he complained that the Court's majority opinion in favor of "liberty of contract" was based on an unexpressed economic theory. Scholars have noted that in the Roberts Court "freedom of expression" is the new "liberty of contract," a doctrine that can be used to strike down pretty much any governmental regulation. The power of wealth to drown rational discourse with lies can hardly be denied; there is no precedent for extending the First Amendment to protect megaphones blaring falsehoods. Unless, perhaps, we believe that the American constitutional experiment is not based on peaceful discourse at all, but on the clash of interest groups. Perhaps the experiment that Holmes thought was in progress had already failed.

Friday, April 4, 2014

Wednesday's decision by the Supreme Court in the latest campaign-funding case, McCutcheon v. FEC, has prompted much valuable commentary, but maybe it is worth adding a few words concerning the tacit rejection of Justice Holmes's constitutional views and methods. Justice Breyer in his opinion for the dissenters quotes Holmes's famous dissent in Abrams v. United States (1919). The reason to limit campaign contributions, Breyer says, is that by amplifying the voices of a few wealthy individuals, large expenditures can wreck the "marketplace of ideas" on which our democracy depends. The phrase, for which no attribution was needed or given, of course is Holmes's image for the peaceful discourse on which constitutional government depends. He was not interpreting the First Amendment, he was expressing a structural principle of the Constitution. Even if the Sedition Act, at issue in the Abrams Case, was consistent with the Constitution, and even if throwing leaflets from a window, urging a general strike, could be understood to pose a "clear and present danger" of harm to the nation's efforts in wartime, the draconian sentences imposed in the case showed that the defendants were being punished, not for what they said or did, but for the beliefs that they held. In order to ensure that republican government functions as intended, the Constitution requires some restraints on speech and on the press: no megaphones in enclosed spaces, please; no false shouts of "fire" in a theater, causing a panic.Chief Justice Roberts expressly rejects this manner of deciding cases that arise under the First Amendment, at least so far as a law is said to be necessary to protect the integrity of the political process:

[T]here are compelling reasons not to define the boundaries of the First Amendment by reference to such a generalized conception of the public good.

The rich and the poor alike are free to give money to candidates and parties, no disagreement there. Money talks. But no right is absolute, and we limit freedom of speech and association in numberless ways, for the good of the community. The difficulty with Justice Roberts' opinion is that it lays out a doctrine, based largely on the language of his own prior opinions, that only a clear and present danger of selling government favors, or the appearance of doing so, can justify limitations on political expression or association.

Justice Holmes famously said that the clear and present danger of a crime would justify punishment of otherwise protected speech. In Buckley v. Valleo the Court upheld portions of the campaign finance law against its first challenge, saying that the risk of bribery, and the appearance of bribery, was sufficient for the government to impose limits on individual contributions. Rogers' doctrine overrules that precedent and turns Holmes on his head. It makes the equivalent of bribery the only justification for limiting campaign contributions. Justice Breyer energetically points out that this is a new doctrine that is not justified by any precedent, not even by Roberts' own past opinions. It is a legislative pronouncement for future application. One imagines briefs are already being written, arguing that the few remaining limits on contributions are unjustified, since a Congressman is not likely to be bribed solely by a gift of $2600. . . .

Among the many legal questions raised by Roberts' doctrine is the awkward circumstance that in this case it rests upon what he claims to be a factual refutation of the purpose of the law in question. But more about the doctrine and the supposed facts on which it rests, later.

Tuesday, April 1, 2014

That was the title of a talk Holmes gave to the New York Bar Association on January 17, 1899. He had already given a copy or the prepared talk to the Harvard Law Review, where it appeared without delay. The burden of the talk was that explanations of law in the modern world--in the dawning twentieth century--explanations should be based on historical facts, rather than the doctrines and systems of the past. Law like any other human institution changes, and to understand its present state we must known its point of origin, and the forces that continued to shape it. ctAlthough less well known than some other of his addresses, this was the founding document of "legal realism," and of Holmes's own Malthusian beliefs. Holmes was wrong about the forces that shaped society and its laws, largely because he believed the supposedly scientific, evolutionist doctrines of his day, which rested upon a fallacy, the asumption that conflict between races and classes was the force shaping society and law. Today, we call this fallacy "social darwinism" although Charles Darwin had nothing to do with it. In Holmes's day it was linked to an array of pseudo-sciences, the "scientific" anthropology that claimed to have identified criminal proclivities in the dimensions of a skull, and the "eugenic" doctrine that character traits could be bred into the people of a nation by limiting the reproduction of disfavored. These were "progressive" doctrines, but had no relation to the progressive politics of today--they were thought to be progressive because they were based on the latest, scientific thought.

We may doubt the doctrines of social evolution, or even that progress has been made, but it does seem that we have better tools today for determining historic facts, and indeed for determining facts in general. A question does come to mind, whether we might be able to make better use of genuine scientific methods in determining what is fact, historic fact and evidentiary fact, now that DNA analysis and Bayesian probability have overturned so many of the superstitions of the past. We have evidence, if not absolute proof, that Thomas Jefferson did father Sally Hemmings' children, and we have Annette Gordon-Reed's careful and thoughtful studies of evidence and proof concerning such questions. Shouldn't we address law, in theory and practice, with modern tools of explanation and proof?